The intersection of criminal law and immigration law

Attorney General delivers fiery speech in defense of the status quo

Visiting the southwest border for the first time since becoming Attorney General, today Jeff Sessions delivered a campaign-style speech promising to bring the federal criminal justice system to bear against immigration law violators. Standing before Customs and Border Protection officials in Nogales, the Attorney General described beheadings, machete attacks, and gang violence. “Criminal aliens, and the coyotes and the document-forgers seek to overthrow our system of lawful immigration,” he claimed.

In response, the Justice Department that he leads will “take our stand against this filth” by prioritizing prosecutions of federal immigration crimes. In a memo to federal prosecutors also released today, Sessions asks local United States Attorneys to “increase your efforts” targeting five existing federal crimes related to immigration activity and one more general crime related to law enforcement activity:

Bringing in and harboring migrants. INA § 274, 8 U.S.C. § 1324

Illegal entry. INA § 274, 8 U.S.C. § 1325

Illegal reentry. INA § 275, 8 U.S.C. § 1326

Aggravated identity theft. 18 U.S.C. § 1028A

Fraud and misuse of visas. 18 U.S.C. § 1546

Assaulting, resisting, or impeding federal officers. 18 U.S.C. § 111

Prosecutions for immigration crimes already top the list of most frequently prosecuted federal crimes. In fiscal year 2016, the year that ended last September, federal prosecutors charged 68,314 defendants with an immigration crime. The next most frequently prosecuted category of federal crimes, illicit drug activity, clocked in at just shy of 24,000 defendants that year. This trend is nothing new. In FY 2012, for example, federal courts completed 92,345 immigration crime prosecutions and less than 40,000 drug prosecutions.

Reflecting the enormous number of immigration crime cases lodged annually, the federal government has detained tens of thousands of people awaiting immigration crime prosecutions. In FY 2013, the last year for which data are available, the agency in charge of pretrial detention of people charged with a federal crime, the U.S. Marshals Service, took into its custody 97,982 people. That year it held onto 28,323 drug crime suspects. The last time that immigration crime defendants have not been the most commonly detained type of federal defendant was 2003.

This prosecutorial and imprisonment trend is not evident from the Attorney General’s remarks. Instead, he claims, “This is a new era. This is the Trump era. The lawlessness, the abdication of the duty to enforce our immigration laws and the catch and release practices of old are over.” I have no doubt that the age of Trump will see large-scale prosecutions of immigration crimes, but it is entirely false to claim that this marks a departure from the recent past. Indeed, instead of declaring this “the Trump era,” Attorney General Sessions could just as honestly have declared this “the Obama era.” Had he done that, he would have at least given credit where eight years’ worth of credit is undeniably due.

High in rhetorical value, the Attorney General’s remarks were sparse on details. Most importantly, it is unclear whether the Trump administration will convince Congress to give federal prosecutors more money to target immigration activity. If they can’t, then today’s announcement amounts to a request that U.S. Attorneys shift money away from other types of federal crime for the sake of ramping up federal immigration crime prosecutions.

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[…] Hernández, assistant professor at the University of Denver Sturm College of Law wrote on his crimmigration site, that prosecutions for immigration crimes already top the list of most frequently prosecuted […]

[…] Hernández, assistant professor at the University of Denver Sturm College of Law wrote on his crimmigration site, that prosecutions for immigration crimes already top the list of most frequently prosecuted […]

February 5: Quoted in article about Indiana death in drunk driving incident allegedly caused by unauthorized migrant [Read article here]

January 31: I'm quoted in San Francisco Chronicle about ICE's policy of arresting people in and near courthouses [Read article here]

January 18: I talked to CityLab about symbolic value of ICE raids on 7-11 stores [Read article here]

January 8: I'm quoted in Governing talking about ICE head's threats to imprison elected officials who support policies limiting cooperation with ICE [Read article here]

January 5: I'm quoted in article about San Antonio Police Department decision to prosecute alleged migrant smuggler under state law rather than hand over to ICE for federal prosecution [Read article here]

January 3: Quoted in article about ICE chief's threats to imprison elected officials who support migrant-friendly policies [Read article here]

2018

December 30: I'm quoted in The Atlantic discussing the special impact crimmigration policies have on black migrants [Read article here]

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